2011 Y L R 1999
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
Mst. PARVEEN AKHTAR and another ---Petitioners
Versus
Syed WASEY A GHA and 2 others ---Respondents
Civil Revision No.135 of 2008, decided on 11th February, 2011.
(a) Civil Procedure Code (V of 1908) ---
----O. I, R.9, O.VII, R.11, O.XXIII, R.1(3) & S.11 ---Specific Relief Act (I of 1877), S.42 -
--Suit for declaration ---Non-Joinder or misjoinder of parties ---Effect ---Trial Court
dismissed the suit for non -accrual/non -disclosure of the cause of action ---Appellate Court
dismissed appeal on the same ground ---Plaintiff contended that Trial Court dismissed the
suit instead of rejecting the plaint ---Defendant contended that the plaintiffs having
withdrawn an earlier suit, second suit was not maintainable ---Validity ---Courts below
failed to appreciate the provision of law and arrived at erroneous conclusion ---Order
XXIII, R.1(3), C.P.C. barred filing of fresh suit but burden of proof lay on defendants to
establish that the suit was barred as they had raised objection under O.XXIII, R.1(3),
C.P.C. ---Order I, R.9, C.P.C. specifically provided that no suit should be defeated by
reaso n of mis -joinder or non -joinder of parties, rather, court was empowered under O.I,
R.10(2), C.P.C. to strike out or add parties at any stage of the proceedings ---Courts below
wrongly held that the suit was not maintainable due to non -joinder of parties ---Court,
under provisions of O.VII, R.1(i), C.P.C., initially had to rely upon the valuation as
assessed by the plaintiff in plaint ---Order VII, R.11, C.P.C., empowered the court to
reject the plaint which was insufficiently stamped and where plaintiff had f ailed to file
requisite stamp paper within the time fixed by the court ---Trial Court did not allow
sufficient time to plaintiff to file the requisite court -fee, rather based its findings on
presumptions which was neither legal, nor proper ---Impugned orders were set aside and
case was remanded to Trial Court for decision afresh.
(b) Civil Procedure Code (V of 1908) ---
----O. I, R.9 ---Application and scope of O.I, R.9, C.P.C. ---Order I, R.9, C.P.C.
specifically provided that no suit shall be defeated by reason of mis -joinder or non -
joinder of parties.
(c) Civil Procedure Code (V of 1908) ---
----O. I, R.10 ---Powers of the court ---Order I, R.10, C.P.C. empowered the court to strike
out or add parties at any stage of the proceedings.
(d) Civil Pro cedure Code (V of 1908) ---
----O. VII, R.1(i) ---Valuation of suit ---Principle ---Initially, the court as per provisions of
O.VII, R.1(i), C.P.C., had to rely on the valuation as assessed by plaintiff in the plaint.
(e) Civil Procedure Code (V of 1908) ---
----O. VII, R.11 ---Insufficiency of stamps --- Effect --- Powers of court --- Order VII,
R.11, C.P.C. empowered the court to reject the plaint which was insufficiently stamped
and where plaintiff had failed to file requisite stamp paper within the time fixed by the
court.
Ayaz Swati for Petitioners.
Mujeeb Bazai for Respondents Nos. 1 and 2.
Date of hearing: 22d October, 2010.
JUDGMENT
MRS. JUSTICE SYEDA TAHIRA SAFDAR, J .---The petitioners, through instant
petition, sought revision of order da ted 17 -10-2007 of Civil Judge -V, Quetta, whereby
suit filed by them was dismissed being not maintainable under provisions of Order VII
Rule 11, C.P.C. and order dated 31 -5-2008 of Additional District Judge -VI, Quetta,
whereby the appeal filed by them was a lso dismissed. It is their contention, that both the
courts below, while dismissing the suit and appeal, did not consider relevant provisions of
law, rather simply dismissed the suit on legal objections raised by respondents Nos.1 and
2, even without calli ng of evidence. Further contended that as there is misappreciation of
relevant provisions of law, as such the impugned orders are illegal, thus liable to be set
aside. It has been prayed that both the impugned orders be set aside, while the case be
remande d to the trial Court for disposal, in accordance with law.
Counsel for the parties are heard, while record is perused. Learned counsel for the
petitioners contended, that the trial Court failed to consider the provisions of Order XXIII
Rule 1(3), Order VI I, Rule 11 and Order I Rule 9, C.P.C. Further, the suit was dismissed
by the trial Court instead of rejecting the same, as per requirement of the law. While in
reply, learned counsel for the respondents contended, that the suit was hit by sections 8
and 42 of the Specific Relief Act. Further, the petitioners have not filed any document in
support of their case, before the trial Court. Further contended, that the petitioners
previously filed a complaint against respondent No. 1, which was dismissed, as s uch
second suit cannot be filed being barred by section 11, C.P.C. He further argued, that
proper court -fee has not been affixed on present petition, as such it is liable to be
dismissed for want of payment of required court -fee.
It is apparent from recor d that the petitioners Parveen Akhtar and Mst Amna, filed
a suit seeking declaration of their title, being owners of suit property, also prayed for
possession of the same. While permanent injunction was also prayed, against the
respondents/defendants, to t he effect of restraining them from making interference
therein. In their joint written statement respondents Nos.1 and 2, while strongly
contesting the suit raised several objections, on maintainability of the suit. The trial
Court, though framed issues on legal objections as well as on merits of the case, but
before calling evidence of the parties, decided Issue No.1, pertaining to legal objections,
through order dated 17 -10-2007, after hearing the counsel for the parties. Thereby
arrived to the concl usion that the suit is not maintainable having no cause of action, thus
dismissed it while invoking provisions of Order VII, Rule 11, C.P.C. The petitioners
being aggrieved of the order, challenged the same by way of filing appeal. The appellate
court i.e. Additional District Judge -VI, Quetta through order dated 31 -5-2008, while
holding that the requisite court fee has not been affixed by the plaintiffs on the suit and
due to non -mentioning of specific period when the cause of action has accrued, and also
as there is no explanation about withdrawal of the previous suit, the appeal being found
meritless thus dismissed, while the order of the trial Court was upheld. It is further
apparent from record, that the petitioners filed instant revision petition, which was
dismissed in limine by this Court through order dated 14 -3-2009, which was appealed
before the honourable Supreme Court of Pakistan, who, through order dated 16 -9-2009,
set aside order of this court, and remanded the petition for re -writing of the jud gment,
after affording proper opportunity of hearing to all the concerned.
Counsel for the parties were heard thereafter, and record is perused. The trial
Court while deciding the suit only give findings on legal objections raised by defendants
Nos.1 and 2/respondents Nos.1 and 2 in their joint written statement. The first objection
was to the effect that the suit is hit by provisions of Order XXIII, Rule 1(3), C.P.C., it
is objected that as the plaintiffs have already withdrawn a suit previously fil ed by them
unconditionally, as such second suit is not maintainable. The trial Court while deciding
this objection found it to be not relevant. The second objection i.e. "D" of the written
statement filed by defendants Nos.1 and 2/ respondents Nos.1 and 2, was to the effect that
as the plaintiffs are claiming the property in question being their ancestral property, and
relied upon certain documents including revenue entries, which has no connection with
the house in dispute, further the plaintiffs neither b eing recorded owners nor in
possession, thus the suit is not maintainable under the provisions of section 42 of the
Specific Relief Act. The trial Court while deciding this objection held that the plaintiffs
have no ownership documents, nor date of their d ispossession is mentioned, thus the suit
is not maintainable in light of Section -42 of the Specific Relief Act. While to the extent
of legal objection "F", the trial Court only on relying the objections, comes to the
conclusion that the respondent No.3/ d efendant No.3 is unnecessarily joined as party,
further some Abdul Razzaq and Abdul Ali, being occupants of house in question, are not
made party to the suit, thus suit is bad for misjoinder and non -joinder of parties, and not
maintainable. As far as objec tion "H", which pertains to the valuation of the suit, the
trial Court simply disbelieved the valuation assessed in the plaint and held that the
required court fee has not been affixed, thus concluded that the suit is not maintainable,
and is li able to be dismissed under Order VII, Rule 11, C.P.C. The appellate court,
while agreeing with the findings of the trial Court, also dismissed the appeal filed by
the petitioners, on same grounds.
The trial Court as well as appellate cour t failed to appreciate legal provisions of
law and arrived to the conclusion, which is erroneous. As far as, withdrawal of the suit is
concerned, though there is a bar on filing of fresh suit under provisions of Rule 1(3) of
Order XXIII C.P.C., but the bu rden is wrongly placed on the petitioners, rather it is the
defendants Nos.1 and 2/respondents Nos.1 and 2, who raised the objection, thus have to
establish that the suit is barred by above mentioned provision of law. As far as,
misjoinder and non -joinder of the parties are concerned. Order I Rules 9 and 10, C.P.C.
are very much relevant and clear. It is specifically provided, under Rule 9 of Order I,
C.P.C., that no suit shall be defeated by the reasons of misjoinder and non -joinder of the
parties, rather under Rule 10(2) of Order I, C.P.C., the court is fully empowered to struck
out or to add parties at any stage of the proceeding. If court arrives to the conclusion, that
a party is improperly joined, it can be strike out, or if the court arrives to the c onclusion
that any person is necessary to be joined as party, for proper decision of the case, the
court may at any stage of the proceedings joined such person as party to the suit. Both the
courts below fell in error that suit is not maintainable on basis of non -joinder and
misjoinder of parties, without exercising the powers vested in them. As far as, objection
relating to the ownership of the petitioners/plaintiffs is concerned, it cannot be decided
merely on documents annexed with the plaint. Rather the issue of title relates to the
factual aspect of the case, thus cannot be decided without recording of evidence of the
parties. The trial Court simply relied on the documents, which even have not been
brought on record as per relevant provisions of law, ra ther comes to the conclusion that
the suit is not maintainable under section 42 of the Specific Relief Act erroneously.
Section 42 of the Specific Relief Act does not empower the court to decide the issue of
facts, on mere assertions of the parties, rather it relates to the discretion vested in a court
in respect of declaring status or right of a party, by way of filing a civil suit. This
provision of law has been misunderstood by the trial, as well as by the appellate court. As
far as valuation of the suit is concerned, apart from the objection raised on valuation of
the suit by any of the defendant, initially the court has to rely on the valuation as assessed
by the plaintiff in the plaint, as per provisions of Order VII Rule 1(i), C.P.C. Though Rule
11 of the Order VII, C.P.C. empowers the court to reject the plaint on ground, that the
plaint is insufficiently stamped, and the plaintiff has failed to file requisite stamp paper
within the time fixed by the court. In present case the petitioners/ plaintiffs have valued
their suit as Rs.24,000. Though respondents Nos. 1 and 2/defendants Nos. 1 and 2 raised
objection on such valuation, with assertion that the suit property valued more than
Rs.600,000. But, there is no objection to the effect, that the suit is i nsufficiently stamped.
Thus in the circumstances, initially the court has to rely on the valuation as assessed by
the plaintiffs in the plaint, while requisite court -fee is required to be affixed on the basis
of such valuation. As far as, objection to said extent is concerned, the valuation is to be
decided by the court on basis of the evidence produced before it, whereafter, the court is
required to give sufficient time to the plaintiff to file requisite court -fee, and in
case of failur e shall reject the plaint. But, in present case, this has not been done, rather
the trial Court simply based its findings on the assertions made by the respondents Nos.1
and 2/defendants Nos. 1 and 2, and on its own presumptions, which is neither legal, nor
proper.
In view of above discussion both the courts below have failed to consider the legal
requirements and arrived to the decision, which is contrary to law, thus liable to be set
aside. The revision petition, is hereby accepted. Impugned orders da ted 31 -5-2008 of
Additional District Judge -VI, Quetta and 17 -10-2007 of Civil Judge -V, Quetta, are hereby
set aside. The case is remanded to the trial Court, for deciding it afresh, after recording
of evidence, strictly in accordance with law.
No order a s to costs.
A.R.K./20/Q Revision accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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